Decision No: C63/98(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

Application by the claimant for leave to appeal
and appeal to the Social Security Commissioner
on a question of law from the decision of the
Cookstown Social Security Appeal Tribunal
dated 3 January 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal by the claimant against the decision of a Social Security Appeal Tribunal which recorded that it received a telephone call at 2.00 pm from claimant's sister to the effect that claimant had apparently locked herself in the bedroom due to fear of the Tribunal hearing and claimant's sister asked for the hearing to proceed in her absence.  The Tribunal then carried out what is called a "paper hearing". 

2.	It recorded it had before it a letter from claimant's sister and had considered same and proceeded to make the following findings of fact:-

"The findings of the Medical Officer of 9.10.1996 are upheld.

There is no medical evidence submitted by the claimant herself and in particular there is no psychiatric evidence.

The report of the Medical Officer of 9.10.1996 is found as a medical fact.

The claimant has a zero points score."

and gave reasons for its decision as:-

"The claimant has failed to provide any evidence which would 
support her contentions."

	The Tribunal therefore awarded claimant no points in the All Work Test.

3.	The letter referred to from claimant's sister comments on the medical report which recorded that claimant had shoes with tied laces and said that she (her sister) knew that she was wearing flat slip-on shoes that day.  She also commented that claimant did not drink tea or coffee and therefore never made tea or coffee.   The large handbag referred to by the Medical Examiner was of light cloth and that the claimant carried this bag around with her all the time with nothing in it except on the morning of the examination her tablets where put in there by her sister.  She also referred to the fact that she had blackouts and nose bleeds.  In the letter of appeal to the Tribunal, her sister recorded that claimant suffers from deep depression yet the Tribunal, even when it was told about her behaviour on the morning of the Tribunal of locking herself in the bathroom for fear of the Tribunal hearing, seemed to have ignored the obvious problems which claimant suffered, namely deep depression.

4.	Upon receipt of the letter of appeal which referred to the fact that claimant was undergoing tests, it was now known that she suffered from chronic bronchitis and asthma which resulted in blackouts, panic attacks and loss of energy.  The Adjudication Officer responded as follows:-

		"Miss F...'s application is made on the grounds that the Tribunal
		decision was based on insufficient evidence.  Specifically, Miss F... submits that the Tribunal knew she was undergoing tests.
		The results apparently diagnosed chronic bronchitis and asthma and were unknown at the date of the hearing.

		There was no evidence in the appeal papers to suggest tests were
		on-going at the date of hearing and Miss F... felt unable to
		attend the Tribunal to argue her case.  Nevertheless, I have some
		sympathy with her application.

		Page 18 of the questionnaire (form IB50(NI)), completed on 1.7.1996 by Miss F... indicates that she may have suffered depression. In cases where a mental disability is alleged Departmental procedures require a draft letter to be sent to the claimant's GP to help establish if that disability is mild, moderate or severe.  If severe mental illness is accepted the claimant is treated as incapable of work.  Mild or moderate cases are referred to MSS for examination. There is no evidence that such a letter was sent in this case.

		On 9.10.1997 Miss F... was examined by an MSS doctor.  On page 17 of his report (form IB85) the MSS doctor recognised that:-

		"This girl's symptoms are related to a bit of anxiety and stress
		(family bereavement) not related to any neurological or cerebral
		problem"

		but decided not to apply mental health descriptors because there
		was no recent history of mental disease having been diagnosed 
		or treated and there was no medical evidence nor clinical findings
		of mental disablement before him.

		In absence of any specific medical evidence or oral evidence at
		the hearing it is difficult to see how the Tribunal could have 
		scored Miss F... on mental health descriptors.  However, the
		Commissioner may wish to consider whether it would have been 
		prudent for the Tribunal to have adjourned for medical evidence
		from Miss F...'s own GP given the fact that there was an 
		indication of a mental health problem eg in Miss F...'s
		questionnaire, the MSS doctor's report and in the letter from
		Miss F...'s sister."

5.	I arranged an oral hearing at which claimant was not present nor was she represented.  The Adjudication Officer was represented by Mr McAvoy.  Mr McAvoy said that from the start it was clear that claimant suffered from some form of depression and the Medical Officer recorded that she suffered from anxiety and stress.  Her own doctor recorded that she was receiving counselling from him.  He accepted that claimant did not supply any evidence.  Mr McAvoy said his main concern was how the Tribunal handled her mental problem.  

6.	At the hearing I granted leave to appeal and with the consent of both parties am treating the application as the appeal.  I have considered all the evidence in this case and it is quite clear that the Tribunal erred in not taking into account the letter from claimant's sister which clearly showed that she suffered from deep depression.  The Tribunal dismissed that on the grounds that there was no medical evidence submitted by the claimant and no psychiatric evidence.  I am satisfied that once the Tribunal was put on notice that claimant suffered from deep depression it should have taken some steps to get a psychiatric report which would have been essential in this type of case.  I am satisfied that the Tribunal erred in not taking account of claimant's depression.  I therefore allow the appeal and set aside the decision.  In view of the fact that claimant does suffer from depression and was so badly affected by the fear of going to a Tribunal, I arranged to have a psychiatric examination carried out and a report was received from Dr R J F, Consultant Psychiatrist who records that she suffers from chronic depressive illness.  I would refer to Mr McAvoy's letter of 15 September 1997 in which he drew attention to the fact that in cases where a mental disability is alleged, the procedure requires a draft letter to be sent to claimant's GP. If severe mental illness is accepted the claimant is treated as incapable of work.

7.	It is quite clear from the psychiatric report which I have received from Dr Finlay and which I have referred to above, claimant does suffer from a severe mental illness.  I am satisfied therefore that she is incapable of work and I find that she was incapable from 28 October 1996 and is therefore entitled to Incapacity Benefit from that date.

(Signed):  C C G McNally

COMMISSIONER

20 October 1998